In France, after the signature of the agreed termination
form between the employer and the employee, the parties have 15
calendar days to withdraw their consent. At the expiry of this
cooling-off period, the employer or the employee has to ask the
Labor authorities approve the agreed termination. In a recent
decision, the French Supreme Court had to take a position on the
Can the breach of the cooling-off
period make the agreed termination null and void?
Is the Industrial Tribunal
empowered to approve in lieu of the Labor authorities the agreed
In a decision of 14 January 2016, the French Supreme Court
answered two unresolved issues regarding the regime of agreed
Firstly, the Supreme Court had to confirm whether or not the
French Industrial Tribunal is empowered to approve, in lieu of the
labour authorities, the agreed termination, should it consider that
the decision of the labour authorities to reject the agreed
termination is unjustified.
According to the French Employment Code, only the judicial judge
is empowered to settle disputes concerning agreed terminations.
In the case at hand, the employer requested the Court of Appeal
not only to overturn the decision of the labour authorities
rejecting the agreed termination, but also to approve the agreed
Bringing to an end the disagreements between some lower French
courts, the French Supreme Court took the view that the judicial
judge itself is not empowered to approve an agreed termination. The
French Industrial Tribunal is therefore only empowered to overturn
the decision to approve or refuse the agreed termination taken by
the French labour authorities.
Although this decision is in line with the French labour
authorities' position, as well as with the separation of
powers' principle, it nevertheless outlines the drawbacks of a
legal action designed to overturn a decision rejecting an agreed
Indeed, considering the long procedural delays common with
industrial tribunals, the employer or employee would have a greater
interest in circulating a new approval request, rather than waiting
for the outcome of the judicial action.
In addition, the Supreme Court had to take a position on whether
or not the breach of the cooling-off period had the effect of
making the agreed termination null and void.
In the present case, the labour authorities did not approve the
agreed termination. They considered that the company had sent its
request before the expiry of the cooling-off period starting from
the signature of the agreed termination, and during which the
parties can withdraw their consent.
Based on a literal interpretation of the French Employment Code,
the French Supreme Court set aside the employer's arguments. It
confirmed the position of both the labour authorities and the Court
of Appeal, taking the view that the agreed termination form cannot
validly be sent before the expiry of the cooling-off period.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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